The courts in the new war

December 09, 2002

In past wars and times of peril, civil liberties have sometimes suffered terribly. Politicians responding to popular fears often overreact to dangers, both real and perceived. And the courts have often been reluctant to stand in the way. The Supreme Court, in one of its less admirable hours, upheld the World War II internment of Japanese-Americans.

But the war on terrorism has been different--partly because the Bush administration has been less aggressive than past ones in its efforts to root out supposed dangers on the home front, but also because the courts have been more than ready to scrutinize emergency measures that curtail traditional rights. This time, the judiciary has provided a crucial check that has kept the campaign against Al Qaeda from threatening our bedrock traditions.

The case of Jose Padilla is an illuminating example. He presents problems that are peculiar to this new type of war.

Padilla, an American citizen and former Chicago gang member, was arrested at O'Hare International Airport in May after allegedly traveling to Afghanistan and Pakistan, where he is said to have received training from Al Qaeda operatives. The government said Padilla, whose Muslim name is Abdullah al-Muhajir, was working on a plan to set off a radioactive "dirty bomb" on American soil.

It originally held him as a material witness but then designated him an enemy combatant and transferred him to a Navy brig in South Carolina. Like Yaser Hamdi, a Louisiana-born Taliban fighter captured in Afghanistan, he has been held without charges or access to a lawyer. The administration says that in wartime, the president has broad power to detain enemy combatants without interference from civilian courts.

But the courts will have to decide that--and last week, a federal judge in New York said the administration has gone too far. Judge Michael Mukasey agreed that the government does have the authority "to detain enemy combatants in the circumstances present here." Enemy combatants are enemy combatants, and "it matters not that Padilla is a United States citizen captured on United States soil."

Here the court was on unassailable ground. Belligerents at war with this country shouldn't find refuge in protections designed for criminal suspects. But it was equally right in putting some limits on the president's power, concluding that Padilla has a right to present a court with evidence that he was not what the government claims, and that he may consult with a lawyer who can argue on his behalf.

The government claimed that a lawyer might be tricked by Padilla into unintentionally transmitting messages to his associates, but the judge said the fear amounted to nothing more than "gossamer speculation." He noted that the same danger exists with ordinary prison inmates, and corrections officials have methods to prevent it.

Afterward, Harvard Law professor Laurence Tribe praised the decision as "an intelligent compromise of extraordinarily difficult and almost irreconcilable principles." The war on terrorism is a special challenge to the federal courts. So far, they've acquitted themselves well.